Opinion 15-63

March 19, 2015

Digest:         A judge, “of counsel” to a law firm five years ago and its tenant a decade ago, may appoint a partner of the firm to Part 36 fiduciary appointments, provided all the judge’s ties with the firm are completely severed for over two years from the final termination of such business/financial relationships.

Rules:          22 NYCRR 36.0; 36.1; 100.2; 100.2(A); 100.2(B); 100.3(C)(3); 100.3(E)(1); 100.4(D)(1)(c); Opinions 10-203(B); 06-62; 06-61; 06-54; 05-130(B); 00-67; 89-65.

Opinion:

         A judge, who was “of counsel” to a law firm five years ago and its tenant ten years ago, asks if he/she may appoint a partner of that law firm to fiduciary positions covered by Part 36 of the Rules of the Chief Judge (see 22 NYCRR 36.1).

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), must not engage in “continuing business relationships with those lawyers ... likely to come before the court on which the judges serves” (22 NYCRR 100.4[D][1][c]), and must disqualify him/herself when the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). A judge must exercise the power of appointment “impartially and on the basis of merit” and “avoid nepotism and favoritism” (22 NYCRR 100.3[C][3]). Part 36 similarly provides that a judge must make appointments “on the basis of merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications of the appointee or the requirements of the case” (22 NYCRR 36.0).

         The Committee has previously advised that a judge who will be receiving compensation from a business relationship with the judge’s former law partner is disqualified, subject to remittal, from cases in which his/her former law partner appears, for a period of two years from the last payment to the judge (see Opinions 00-67; 06-62 [sale of law practice to local attorney resulting in a continuing business relationship]; cf. Opinion 06-54 [treating attorneys with an “of counsel” relationship as associated in the practice of law]). Similarly, a judge must disqualify him/herself, subject to remittal, when an attorney from the judge’s former law firm appears before the judge, for two years after the judge’s employment with his/her former law firm ends or until the landlord/tenant relationship between the judge and his/her former law firm ends, whichever occurs later (see Opinions 10-203[B]; 05-130[B]).

         The two-year period begins once all business and financial relations between the judge and firm are entirely severed, both with respect to the judge’s former association with the law firm and the judge’s former landlord/tenant relationship with the firm (see Opinions 06-61; 05-130[B]; 00-67). The relationships are not entirely severed until all financial obligations between the judge and the firm have completely ended, so that no further potential contingency or compensation payments, outstanding rents, or other financial connections exist between the judge and law firm.

         However, once the two-year period ends, the Committee believes a judge may appoint a former law partner or former landlord as a fiduciary (cf. Opinion 89-65 [judge may appoint as a fiduciary an otherwise qualified attorney who was the judge’s law partner 14 years ago]).

         Thus, if all prior business and financial relationships between the inquiring judge and attorney were completely severed over two years ago, as described above, the judge need not disqualify in cases involving the attorney, and may appoint him/her to a Part 36 fiduciary position for which he/she is qualified, as the applicable rules and law permit (see 22 NYCRR Part 36; 100.3[C][3]).